National Insurance Company Ltd. v. Sushama, Mohanan and New India Assurance Co.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY ,THE 23RD DAY OF NOVEMBER 2018 / 2ND AGRAHAYANA, 1940** ## **MACA.No. 1919 of 2016** **AGAINST THE AWARD IN OPMV 236/2011 of II ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD DATED 28.7.2015** ## **APPELLANT/3RD RESPONDENT:** **NATIONAL INSURANCE COMPANY LTD. STADIUM BUS STAND (NEAR),PALAKKAD-687001., REPRESENTED BY ITS MANAGER, MOTOR THIRD PARTY CLAIMS SECTION, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM** ## **BY ADV. SRI.LAL GEORGE** ## **RESPONDENTS/CLAIMANTS:** **1 SUSHAMA AGD 26 YEARS, D/O. SWAMINATHAN, KAVIL HOUSE, KINASSERY KANNADI, PALAKKAD.678501** **2 MOHANAN AGED 76 YEARS, S/O. CHANDRASEKHARA KURUP, SWAPA SADAN, MAIN ROAD, KODUVAYUR, PALAKKAD DISTRICT 678501** **3 NEW INDIA ASSURANCE COMPANY BRANCH OFFICE, FORT MAIDAN, PALAKKAD-678001** **BY ADVS. SRI.RAJESH SIVARAMANKUTTY SRI.N.S.NAJEEB SC FOR R3 SRI.P.SHAIJAN JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 1919/2016** **2** ## **JUDGMENT** The appeal on hand is directed against the award dated 28.7.2015 passed by the Motor Accidents Claims Tribunal, Palakkad (for short 'the Tribunal') in O.P(MV) No.236/2011. The appellant is the 3[rd] respondent before the Tribunal, who is the insurer of the offending vehicle. The appellant seeks to reduce the compensation awarded by the Tribunal. The facts of the case in brief are to the following effect. For the sake of convenience the parties to this appeal are referred to hereinafter as the claimant and the 3[rd] respondent. At about 5.00 pm on 20.6.2009, a lady named Sushama was travelling as pillion rider in a Scooter bearing registration No.KL-9/C-2983, which was ridden by her sister from Kinassery to Palakkad. When the scooter reached near Thottupalam, a car bearing registration No.KL-9/V-96 dashed against the scooter. In the impact, the claimant was thrown away and sustained serious injuries. She was rushed to a local hospital at Palakkad and referred therefrom for better management to a hospital at Coimbatore. She was treated as inpatient for a period from 20.6.2009 till 11.7.2009. During the course of treatment, her right leg got amputated. Alleging **MACA.No. 1919/2016** **3** that the accident was occurred due to the rash and negligent driving of the car by its driver, who was also the owner of the car and seeking for a compensation of Rs.25,00,000/-, the claim petition referred to above was preferred before the Tribunal. 2. The owner-cum-driver of the car, who is the first respondent before the Tribunal had filed written statement contending that the accident was occurred due to rash and negligent riding of the scooter by the sister of the claimant, that no negligence was there on the part of the driver of the car and that the amount claimed as compensation is exorbitant. Car was admittedly insured with the additional 3[rd] respondent. The 2[nd] respondent was wrongly impleaded before the Tribunal as the insurer of the car. The additional 3[rd] respondent, the real insurer, who was impleaded before the Tribunal had filed a written statement admitting insurance coverage of the car with them at the relevant time of accident. It was contended by the additional 3[rd] respondent that the accident was occurred due to rash and negligent riding of the scooter by the sister of the claimant that the driver of the car was not responsible for the accident and that the compensation claimed under various heads is excessive. 3. During trial, the claimant had adduced **MACA.No. 1919/2016** **4** documentary evidence as Exts.A1 to A22 and Ext.X1. On the side of the additional 3[rd] respondent, Ext.B1 policy was also marked. On appreciation of the documentary evidence on record, the Tribunal has arrived at a finding that the driver of the car was responsible for the accident by rash and negligent driving. The Tribunal had also found the claimant entitled to get compensation and accordingly fixed a sum as Rs.20,14,200/- as compensation with interest at the rate of 9% per annum from the date of the claim petition till date of realisation. It is against the aforesaid fixation, the additional 3[rd] respondent has approached this Court in the captioned appeal, seeking for a modification of compensation by reduction. 4. Sri.Lal George, the learned counsel representing the 3[rd] respondent has contended that the compensation awarded by the Tribunal under various heads of compensation is unreasonable and not proportionate to the sufferings of the claimant. It is specifically contended by the learned counsel that Rs.3000/- was the monthly income claimed by the claimant, but the Tribunal has arrived at compensation for disability and loss of earning power by fixing the monthly income as Rs.10,500/- and adding a sum towards future prospects. According to the learned counsel, the Tribunal is highly unjustified in taking the monthly income of the claimant **MACA.No. 1919/2016** **5** as Rs.10,500/- by adding 50% of it in consideration of future prospects. According to the learned counsel, the addition of 50% to the monthly income towards future prospects is contrary to the principles laid down by the Apex Court in **Reshma Kumari v. Madan Mohan (2013(9) SCC 65).** 5. The further contention advanced was against grant of compensation of Rs.5,00,000/- towards loss of bright future and marriage prospects. According to the learned counsel a sum of Rs.5,00,000/- awarded under those heads is excessive and disproportionate. The further contention advanced was that Rs.2,00,000/- and Rs.1,00,000/- respectively awarded under the head pain and suffering and future medical expenses are also on the higher side. According to the learned counsel interference with the compensation awarded under the aforesaid heads is highly warranted. 6. Sri.Rajesh Sivaramankutty, the learned counsel on behalf of the additional 3[rd] respondent has contended that the compensation awarded by the Tribunal under various heads is reasonable and the Tribunal is perfectly justified in granting the same. According to the learned counsel the injured was a lady aged 21 years and unmarried and therefore, the compensation arrived at by the Tribunal is just and reasonable and **MACA.No. 1919/2016** **6** interference of any nature is totally uncalled for. 7. Dispute was not raised with regard to the negligence aspect. The only challenge was against the quantum of compensation awarded by the Tribunal for the reason that it is unjust and unreasonable. The contention firstly raised was with respect to the multiplicand taken by the Tribunal for consideration of compensation for disability and loss of earning power. The claim of the claimant was that she was earning a monthly income of Rs.3,000/- from her profession as a temporary teacher. The Tribunal has taken Rs.3,000/- for the purpose of calculation of compensation under the head of loss of earning. The Tribunal has also taken a period of 12 months for arriving at compensation under the head loss of earning. From the description about the medical documents in the impugned award, it is revealed that the claimant had sustained a fracture on her right leg in the accident. It is further discerned from the description in the impugned award that the claimant's right leg was amputated during the course of treatment. The period of treatment is also described in the impugned award as having a duration from 20.06.2009 till 11.07.2009 during the first spell and from 06.08.2009 till 07.08.2009, in the second spell. Therefore, she had availed inpatient treatment for a total period of 21 days from two different hospitals. When viewed in the **MACA.No. 1919/2016** **7** backdrop, the period that has been taken for arriving at compensation for loss of earning appears to this Court, a reasonable period. Therefore, the sum arrived at as compensation for loss of earning also appears reasonable and this Court is declined to interfere with. 8. It is relevant to notice from the impugned award that the Tribunal had taken Rs.10,500/- as the monthly income for the purpose of calculation of compensation for continuing permanent disability and loss of earning power. The Tribunal had also added 50% to the monthly income fixed by it in consideration of future prospects of the claimant. The documentary evidence adduced by the claimant include Exts.A17, A18 and A20 certificates, pertaining to his educational qualification at the relevant time of accident. It is evidenced from Ext.A17 and Ex.A18 that the claimant had passed Teachers Training Course with first class from Little Flower Teachers Training College, Palakkad. It is also discerned from Ext.A18 that the claimant had completed MS DOS and Basics from Little Flower College of Computers, in the year 2005. It is also discerned from Ext.A20 certificate that the claimant had working experience as a primary teacher at AMSB School, Kinasserry. Claimant has pleaded in the claim petition that she was working as a temporary primary teacher at AMSB School, **MACA.No. 1919/2016** **8** Kinassery at the relevant time of accident and getting a sum of Rs.3,000/- as monthly income. Though, she was getting Rs.3,000/- as monthly income from her temporary occupation as a teacher at the relevant time, in view of the educational qualification she had at that point of time, there is likelihood for her to get a better job with a reasonable salary. In case of any engagement as teacher permanently, she would be able to get more income than that was earned by her at the relevant time of accident. Therefore, there is nothing wrong in the Tribunal taking 50% addition to the monthly income, in consideration of future prospects. The Tribunal is perfectly justified in view of **Syed Sadiq and Ors. v. Divisional Manager, United India Insurance Company (AIR (2014) SC 1052)** in considering future prospects while fixing the monthly income for the purpose of calculation of compensation for disability and loss of earning power. From the impugned award, it is clear that the Tribunal had taken Rs.10,500/- as the monthly income, in due consideration of future prospects. The Tribunal is justified in doing so. No dispute is raised against the multiplier and the percentage of disability adopted by the Tribunal. 18 is the multiplier relevant to the age of 21 years and 40% disability is the disability assessed by the Medical Board in the case of the **MACA.No. 1919/2016** **9** claimant. Therefore, this Court is declined to interfere with adoption of those factors also. Rs.9,07,200/- arrived at by the Tribunal as compensation does not call for interference, in the aforesaid circumstances. 9. The further challenge of the impugned award was with regard to Rs.1,00,000/- awarded by the Tribunal towards future medical expenses. According to the learned counsel, Rs.1,00,000/- was arrived at by the Tribunal as compensation towards future medical expenses without the claim for it based on any materials evidencing future treatment. As already stated, the right leg of the claimant was amputated following the accident. Ext.A13 series and Ext.A14(a) are medical bills produced by the claimant before the Tribunal to establish the expenditure incurred towards treatment. Ext.A14(a) medical bill is totally related to the expenditure incurred by the claimant towards fixation of artificial limb. It is discerned from the evidence on record that artificial limb was fixed on the right leg of the claimant. Therefore, frequent repairs and correction are unavoidable and money is needed for that. The Apex Court while granting addition compensation in the case of a vegetable vendor, whose leg was amputated following an accident has considered the very factum in the absence of any evidence adduced by the victim therein and awarded compensation **MACA.No. 1919/2016** **10** towards future treatment expenses. Therefore, on the basis of the aforesaid dictum, the Tribunal is perfectly justified in awarding Rs.1,00,000/- under the head future treatment expenses on a reasonable estimate. 10. Rs.2,00,000/- was warded by the Tribunal as compensation for pain and sufferings and the sum awarded was disputed by the learned counsel for the additional 3[rd] respondent for the reason that it is exorbitant. The only injury sustained by the claimant was fracture on her right leg and during the course of treatment for want of muscularity the right leg was amputated. It is true that the claimant had undergone inpatient treatment for 21 days at the hospital. But Rs.2,00,000/- awarded by the Tribunal as compensation appears to this Court unreasonable and exorbitant. In **Syed Sadiq and others** case cited supra Rs.75,000/- was granted by the Apex Court as compensation for pain and suffering. Therefore undoubtedly the Tribunal is unjustified in awarding Rs.2,00,000/- as compensation for pain and sufferings. In view of inpatient treatment for 21 days and amputation of leg effected in the course of treatment, this Court finds justification in granting Rs.1,00,000/- as compensation for pain and suffering. Therefore, there will be a reduction of Rs.1,00,000/- **MACA.No. 1919/2016** **11** from the compensation awarded by the Tribunal. 11. Lastly and finally the award was attacked for the reason that a consolidated sum of Rs.5,00,000/- awarded by the Tribunal as compensation for bright future, free movement and loss of amenities and enjoyments in life including marital prospects is exorbitant. Claimant was a lady aged 21 years and was unmarried at the relevant time of accident. It is discerned from the documentary evidence on record that her right leg got amputated following the accident. Truly, her prospects to get a better marriage alliance to her wishes is lost in view of the amputation of her right leg. Claimant must have taken time to get adjusted to the reality of loss of a limb. She might have taken time to accommodate with that. Undoubtedly, in view of loss of limb the claimant must have suffered loss of amenities and enjoyments in life. Therefore, there is nothing wrong in the Tribunal awarding compensation under the head loss of amenities and enjoyments in life. But the fixation of Rs.5,00,000/- as compensation under the heads loss of amenities and marital prospects is too high. This Court find it reasonable to grant Rs.1,50,000/- and Rs.1,00,000/respectively under the heads loss of amenities and loss of marital prospects. In re-fixation of compensation in the above manner, there will be a reduction of Rs.2,50,000/- from the **MACA.No. 1919/2016** **12** compensation awarded by the Tribunal. 12. Lastly and finally the attack was on a sum of Rs.20,000/- awarded by the Tribunal for extra nourishment. It is established that the claimant had undergone inpatient treatment for 21 days following the accident. It is also relevant to notice that the claimant was not compensated for bystander expenses. In the aforesaid circumstances, this Court finds the grant of Rs.20,000/- under the head extra nourishment as reasonable. Therefore, this Court is declined to interfere with the same. 13. It is noticed from the impugned award that Rs.25,000/- was granted as compensation for transportation to hospital. Ext.A15 series are nothing but trip sheets produced by the claimant and it is discerned therefrom that claimant had incurred an expenditure of Rs.15,000/- towards transportation. When the claimant herself has raised a claim that she had expended money towards transportation and trip sheets are marked in evidence as Ext.A15 series to establish that, it is highly improper on the part of the Tribunal to award a sum of Rs.25,000/-. This Court is inclined to interfere with and to reduce it to Rs.15,000/-. There will be a reduction of Rs.10,000/- from the sum already awarded by the Tribunal as compensation for transportation expenses. In the aforesaid **MACA.No. 1919/2016** **13** calculation, the total sum awarded by the Tribunal as compensation will be reduced by Rs.3,60,000/-. In the result, the appeal stands allowed in part. The claimant will be entitled to get Rs.16,54,200/- (Rupees sixteen lakhs fifty four thousand and two hundred only). The rate of interest and the period for which the claimant is entitled for interest as fixed by the Tribunal are maintained. No order as to costs. Sd/- ## **MARY JOSEPH** **JUDGE** ab/NAB